Date: 20130227Docket: CI 13-01-81680

(Winnipeg Centre)Indexed as: Awasis Agency of Northern

Manitoba v. AllenCited as: 2013 MBQB 47

COURT OF QUEEN'S BENCH OF MANITOBA

IN THE MATTER OF: The Fatality Inquiries Act, C.C.S.M. c. F52

AND IN THE MATTER OF: An Inquest into the death of Jaylene Sanderson-Redhead

BETWEEN: ) APPEARANCES:)) John B. Harvie and

AWASIS AGENCY OF NORTHERN MANITOBA,

) An tho ny Lafo n tai ne Guerra

) for the ApplicantApplicant, )

) Jim R. Koch) f o r Go vern men t o f

Manitoba- and - )

) Bruce M. Sychuk) a p p o i n t e d C r o w n

counsel)

T H E H ON OU R A B L E JUDGE HERBERT

) J. Graeme E. Young

LAWRENCE ALLEN, ) for Native Women’s) Transition Centre

Respondent. )) Jurgen W. Feldschmid) for Northern Authority)) Harold Cochrane) for ANCR)) Judgment Delivered:

) February 27, 2013

JOYAL, C.J.Q.B.

I. OVERVIEW

In the context of an ongoing inquest held before a judge of the Provincial

Court (“the Inquest Judge”), the applicant, Awasis Agency of Northern

Manitoba (“Awasis”), brings a motion seeking orders in the nature of certiorari,

mandamus and prohibition.

Awasis seeks the above orders for the purposes of quashing and/or setting aside

the decision made by the Inquest Judge to not recuse himself as the presiding

judge at the Inquest into the death of Jaylene Sanderson-Redhead (the

“Inquest”). That Inquest is being held in accordance with the direction

provided by the Chief Medical Examiner pursuant to s. 19(2) of The Fatality

Inquiries Act, C.C.S.M. c. F52 (“the Act”).

If the Inquest Judge’s decision to not recuse himself is set aside, Awasis asks

this court for an order of prohibition which would prevent the Inquest Judge

from continuing to preside at the Inquest for which a number of sitting days

remain. The practical effect of the order would be to require the

recommencement of the Inquest from the beginning. Evidence has already

been taken on December 11, 12, and December 17 to and including December

21, 2012.

Awasis states on page 7 of its notice of application that:g) The respondent has cross-examined a witness, made statements during the Inquest and has otherwise conducted the Inquest in a manner which the applicant claims gives rise to a reasonable apprehension of

bias on his part and therefore put his impartiality into question; …

The issues on this obviously interlocutory application can be reduced to the

following questions:

(1) In the context of an ongoing Inquest held pursuant to the Act, is

the interlocutory review Awasis seeks available and appropriate, in

the particular circumstances of this case?

(2) If the interlocutory review that Awasis seeks is available and

appropriate in the particular circumstances of this case, does that

review reveal that the Inquest Judge conducted himself such so as

to give rise to a reasonable apprehension of bias, thereby

justifying the orders Awasis seeks?

Given the pressures of time and the pending continuation of the Inquest which

was scheduled to recommence on February 25, 2013, I had earlier given my

oral reasons on February 21, 2013. I had indicated that written reasons would

follow. These are those reasons.

II. BACKGROUND

The deceased child, Jaylene Sanderson-Redhead, was born October 16, 2007.

She died on June 29, 2009 at the hands of her own mother. After having pled

guilty to the offence of manslaughter, her mother, Nicole Redhead, was

sentenced on April 11, 2011 and received a period of 12 years’ incarceration.

Once the outstanding charge as against Nicole Redhead was dealt with by way

of her guilty plea and sentence, the Inquest was called by the Office of the

Chief Medical Examiner through correspondence dated October 25, 2011. For

completeness, I include below the entirety of that letter:October 25, 2011

Honourable Chief Judge Ken ChampagneThe Provincial Court of ManitobaThe Law Courts

5th Floor, 408 York AvenueWinnipeg MB R3C 0P9

Dear Chief Judge Champagne:

INQUEST into the Death ofJaylene Redhead (aka. Redhead-Sanderson; Sanderson-Redhead)DOB: October 16, 2007 / DOD: June 29, 2009Place of Death: Winnipeg, ManitobaCME File: 1513/09

The Office of the Chief Medical Examiner (OCME) was notified of, and conducted an investigation into the death of Jaylene Redhead, age 20 months, of Winnipeg, Manitoba. On November 6, 2009 the Chief Medical Examiner reviewed the circumstances of the death with the Children’s Inquest Review Committee and determined an inquest should be held. However, the inquest was not called at that time because charges had been laid – and, it is the OCME’s practice not to call inquests in cases prior to the disposition of charges. As the matter has now cleared the courts, the OCME is proceeding with calling the inquest.

At the time of her death, Jaylene Redhead was living with her mother in a Native Women’s Transition Centre “safe house” in Winnipeg. On the evening of June 29, 2009 Jaylene was found unresponsive and apneic by a family care worker, who had been alerted by the mother’s boyfriend, an inmate at Headingley Correctional Centre, regarding a possible problem with the child. (Apparently the boyfriend had called the “safe house” following a telephone conversation with Jaylene’s mother.) Despite resuscitation efforts by the family care worker, Winnipeg Fire and Paramedic personnel, who attended and then transported the child to the Children’s Hospital, and Emergency Department staff at the hospital, Jaylene was pronounced dead at 23:26 hours on June 29, 2009. The medical examiner was notified and an autopsy was authorized. Although there was no anatomical cause of death, the child had multiple bruises over her body and human bite marks. The manner of death was undetermined.

Jaylene Redhead had been apprehended by Child and Family Services upon her discharge from hospital, as a newborn, in October 2007. Her short life was spent in and out of foster care. She had been returned to her mother’s care in December 2008.

This was a preventable death.

Therefore, in accordance with s. 19(1) and s. 19(2) of The Fatality Inquiries Act, I direct that an inquest be held into the death of Jaylene Redhead for the following reasons:

CME review of investigation report HYPERLINK "http://web2.gov.mb.ca/laws/statutes/ccsm/f052f.php" \l "19" 19(1) Subject to subsection (3), upon receipt of an investigation report, the chief medical examiner shall review the report and determine whether an inquest ought to be held.

CME to direct holding of an inquest HYPERLINK "http://web2.gov.mb.ca/laws/statutes/ccsm/f052f.php" \l "19(2)" 19(2) Where the chief medical examiner determines under subsection (1) that an inquest ought to be held, the chief medical examiner shall direct a provincial judge to hold an inquest.

Inquest mandatory HYPERLINK "http://web2.gov.mb.ca/laws/statutes/ccsm/f052f.php" \l "19(3)" 19(3) Where, as a result of an investigation, there are reasonable grounds to believe

(a) that a person while a resident in a correctional institution, jail or prison or while an involuntary resident in a psychiatric facility as defined in The Mental Heal th Act, or whi le a resident in a developmental centre as defined in The Vulnerable Persons Living with a Mental Disability Act, died as a result of a violent act, undue means or negligence or in an unexpected or unexplained manner or suddenly of unknown cause; or (b) that a person died as a result of an act or omission of a peace officer in the course of duty;

the chief medical examiner shall direct a provincial judge to hold an inquest with respect to the death.

1) to determine the circumstances relating to Jaylene’s death;2) to examine the function and operation of “safe houses” with

regard to (but not limited to) the following factors:(a) staff/client ratio;(b) supervision; and(c) criteria used to determine which child/children can be reunited with their parent/parents (who, most often, are in need of services themselves) and when; and

3) to determine what, if anything, can be done to prevent similar death from occurring in the future.

In due course, it would be appreciated if the OCME could be advised as to the date, time, and location of the inquest. Thank you.

Sincerely,A. Thambirajah Balachandra, MBBS, FRCPC, FCAPChief Medical Examiner

(emphasis added)

A standing hearing was held before the Inquest Judge on May 18, 2012. The

following parties were granted standing:

Nicole Redhead, mother of Jaylene Sanderson-Redhead;

The Sanderson family, represented by Sky Sanderson, paternal grandmother of

Jaylene Sanderson-Redhead;

Government of Manitoba, Department of Family Services and Labour, Child and

Family Services Division;

Awasis Agency of Northern Manitoba;

Southeast Child and Family Services Agency and the First Nations of Southern

Manitoba Child and Family Services Authority, an All Nations Coordinated

Response Network (“ANCR”);

First Nations of Northern Manitoba Child and Family Services Authority

(“Northern Authority”); and

The Native Women’s Transition Centre.

The Inquest commenced on December 11, 2012. It sat December 12, 2012

and carried through from December 17 to December 21, 2012. During those

sitting days, the Inquest Judge heard from the following witnesses:

Nicole Redhead (the biological mother);

Dr. Susan Phillips (pathologist);

Justine Grain (Office of the Children’s Advocate);

Dr. Del Ducharme (psychologist under contract by Awasis);

Sky Sanderson (Jaylene Sanderson-Redhead’s paternal grandmother);

Shelley Burnstick (Awasis case manager at the time of Jaylene’s birth);

Francis Swampy (Awasis case manager at the time of Jaylene’s death);

Veronique Bourgeois (Awasis resource worker).

It is in connection with the testimony of only one witness, Shelley Burnstick

(“Burnstick”), that Awasis impugns the conduct of the Inquest Judge. She

testified pursuant to what had been her role as the Awasis case manager at the

time of Jaylene’s death.

Burnstick testified during a period of three days. She has been described by

most counsel who made submissions on this application (and who were present

for her testimony), as a “difficult witness”. At one point in her testimony, it

would seem that it was necessary for Burnstick to be excused so that all counsel

could meet with the Inquest Judge in order to address what has been described

by the Inquest counsel as her “proclivity to provide evasive answers”. At no

point during that discussion did counsel for Awasis raise any concerns

respecting an apprehension of bias or indeed, any concerns in relation to the

manner in which the Inquest Judge was performing his role. Apart from two

occasions, counsel for Awasis did not object during Burnstick’s testimony -

testimony in which the Inquest Judge adopted an undeniably interventionist

approach, with sometimes very pointed questions, repeated requests for

clarification and further requests for explanation concerning what the judge

seemed to think were incongruities. I note as well that despite the

acknowledged fact of the Inquest Judge’s many interventions, in Burnstick’s

examination-in-chief, there were hours of her cross-examination (conducted by

counsel for Awasis) during which the Inquest Judge was not intervening or

interjecting.

Following the December 21, 2012 hearing date, the Inquest was to resume

January 16 and continue through to and including January 25, 2013. No

evidence was ultimately adduced during that period because on January 16,

2013, Awasis’ counsel made a motion to the Inquest Judge requesting his

recusal.

The above motion for recusal was adjourned for submissions and to enable all

counsel to seek instructions from their clients.

Counsel for the Northern Authority was the only counsel to advise that he

joined in support of Awasis’ motion for recusal.

On January 21, 2013, the Inquest Judge provided his reasons for decision, in

which he dismissed Awasis’ motion seeking his recusal. Awasis’ counsel then

brought a motion requesting the Inquest Judge stay his decision.

Although it would appear that the Inquest Judge did not grant the requested

stay, he did adjourn the Inquest until February 25, 2013. It is on that date that

the Inquest is now set to recommence through to and including March 8,

2013. Following that period, the Inquest is scheduled for an additional week

of testimony commencing May 13 and continuing through to and including

May 17, 2013.

The evidence adduced on this motion consists largely of two affidavits of

Sandra Joan Bodnar (along with their attachments) sworn on January 21, 2013

and January 23, 2013 respectively.

The only evidence on this application from the actual record of the Inquest’s

proceedings are those selected portions of the transcript from Burnstick’s

testimony. Awasis contends that those selected portions of transcript represent

examples of the impugned interventions by the Inquest Judge which are so

serious and violative of any notion of procedural fairness and natural justice,

that even that slice of a slice of the testimonial record establishes the alleged

reasonable apprehension of bias.

While not all interested persons granted standing at the Inquest attended or

participated at the hearing of this application, those who did made submissions

in writing or were provided an opportunity to make submissions orally.

III. LEGAL FRAMEWORK

The matters discussed below under the rubric of “legal framework” are reference

points for my later analysis. These reference points will inform my

determination(s) in respect of the two questions that I posed at paragraph 5.

The following reference points are discussed below:

(a) The objectives and parameters of an inquest;

(b) The need for impartiality;

(c) The need for judiciousness;

(d) The need to respect the scope of the Inquest in question;

(e) The test for recusal;

(f) The availability of interlocutory relief in the course of an inquest.

(a) The Objectives and Parameters of an Inquest

Although the Government of Manitoba was granted standing at the Inquest and

has taken no position in respect of this application, it has provided considerable

assistance in its submissions with respect to the objectives, parameters, roles

and procedures that typically govern inquests. The Government of Manitoba

made even more specific submissions in relation to inquests held pursuant to

the Act.

Inquests can be traced back to the common law of coroners’ inquests, whose

purpose was as a fact-finding process endeavouring to find the cause of

suspicious deaths. T. David Marshall, a justice of the Superior Court of Ontario

and author of Canadian Law of Inquests, noted the following at page 29 of

his text, Canadian Law of Inquests, 3d ed. (Toronto: Thomson Canada

Limited):The majority of justices (de Grandpré, Martland, Judson, Ritchie and Dickson JJ.) held that the traditional role of the coroner as it existed in England and in Canada at the time of Confederation had been replaced by a truly Canadianized institution whose function is to investigate

deaths that are not natural or purely accidental and identify the exact circumstances of the death to check public imagination and indignation, to enable the community to be aware of factors which put human life in jeopardy, and to reassure the community that the government is acting to ensure that the guarantees relating to human life are duly respected. They concluded that, notwithstanding its title, the coroners’ court was not a court, much less a court of record. They held that the inquest is not a trial and there is no accused. Its function is limited to inquiry into the circumstances of the death and it is not concerned with the prosecution or punishment of an accused …

(emphasis added)

In Hudson Bay Mining and Smelting Co. v. Cummings, 2006 MBCA 98,

208 Man.R. (2d) 75, M.J. No. 304 (QL) (hereinafter “Hudson Bay Mining

2006”), Steel J.A. considered at para. 39 the legislative scheme and function

of inquests across Canada:39 A review of the inquest legislation across Canada reveals that although the form of the legislation differs vastly, the fundamental aspects of the various regimes which impact on the issues in this case are extremely similar. All regimes clearly support the inquest as being an independent, fact-finding inquiry. The judges and coroners must all be impartial and independent, and they are charged with the primary duty of

gathering the relevant facts surrounding the death of the deceased.

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sh-20.10786.072158526671" \l "fn-2" 2 All of the regimes also support the idea of the inquest being in the public interest. This is reflected in provisions such as those which permit the coroner or judge to make

recommendations to prevent similar deaths in the future HYPERLINK

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sh-20.10786.072158526671" \l "fn-3" 3, which mandate a public inquest, which give interested persons or groups standing and which permit the Attorney General or Crown to be represented.

As part of her examination into the nature of inquests which she undertook in

Hudson Bay Mining 2006, supra, Steel J.A. underscored the importance of

the acquisition of facts. At para. 41 she noted:41 The importance of gathering all of the relevant facts is reflected very clearly in most of the regimes by the provisions surrounding the subpoenaing of witnesses and the requirement that witnesses testify fully. These provisions all support the viewpoint that although an inquest is not a forum in which blame is to be assigned, the coroner or judge should not shy away from examining all of the facts surrounding a death, even if that examination reveals facts which might have a damaging effect on someone legally or professionally. In most regimes, the goal of receiving all of the relevant information supersedes almost all other concerns. The only evidence that will generally not be receivable by the coroner or judge is evidence to which privilege attaches and evidence

which is statutorily prohibited from being received. HYPERLINK "http://

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(emphasis added)

In the context of inquests held in Manitoba pursuant to the Act, s. 19(2) of the

Act sets out the direction given by the Chief Medical Examiner to a Provincial

Court judge to hold an inquest:CME to direct holding of an inquest 19(2) Where the chief medical examiner determines under subsection (1) that an inquest ought to be held, the chief medical examiner shall direct a provincial judge to hold an inquest.

The objectives of an inquest held pursuant to the Act can be discerned in part

by examining the prescribed duties of the presiding judge:Duties of provincial judge at inquest 33(1) After completion of an inquest, the presiding provincial judge shall

(a) make and send a written report of the inquest to the minister setting forth when, where and by what means the deceased person died, the cause of the death, the name of the deceased person, if known, and the material circumstances of the death;

(b) upon the request of the minister, send to the minister the notes or transcript of the evidence taken at the inquest; and

(c) send a copy of the report to the medical examiner who examined the body of the deceased person;

and may recommend changes in the programs, policies or practices of the government and the relevant public agencies or institutions or in the laws of the province where the presiding provincial judge is of the opinion that such changes would serve to reduce the likelihood of deaths in circumstances similar to those that resulted in the death that is the subject of the inquest.

(emphasis added)

It is the terms of reference of the Chief Medical Examiner’s directing letter and

the statutorily prescribed duties that provide the Provincial Court judge the

framework for his or her report and any recommendations contained therein.

It is well established that an inquest need be seen as very different from a

criminal or civil trial. In Hudson Bay Mining 2006, at para. 44, Steel J.A.

affirmed an earlier decision of Kroft J. (as he then was):44 This viewpoint also tends to be reflected in the meager case law in Manitoba. For example, in Head and Head v. Trudel, P.C.J. HYPERLINK "http://www.lexisnexis.com:80/ca/legal/search/runRemoteLink.do?langcountry=CA&l inkInfo=F%23CA%23MANR2%23decisiondate% 2 5 1 9 8 8 % 2 5 s e l 2 % 2 5 5 4 % 2 5 y e a r % 2 5 1 9 8 8 % 2 5 p a g e% 2 5 1 4 5 % 2 5 s e l 1 % 2 5 1 9 8 8 % 2 5 v o l%2554%25&risb=21_T16729241665&bct=A&service=citation&A=0.6024739757134944" \t "_parent" (1988), 54 Man.R. (2d) 145 (Q.B.), aff'd HYPERLINK "ht t p: //www.l exi snexi s .com:80/ca /l ega l /sea rch/r u n R e m o t e L i n k . d o ? l a n g c o u n t r y= C A & l i n k I n f o = F % 2 3 C A%23MANR2%23deci s i ondate%251989%25sel2%2557%25year% 2 5 1 9 8 9 % 2 5 p a g e % 2 5 1 5 3 % 2 5 s e l 1 % 2 5 1 9 8 9 % 2 5 v o l%2557%25&risb=21_T16729241665&bct=A&service=citation&A=0.4261877727091009" \t "_parent" (1989), 57 Man.R. (2d) 153 (C.A.), Kroft J. (as

he then was) stated (at paras. 10-11):

.... The object of the Fatal[ity] Inquiries Act [S.M. 1975, c. 9 - Cap. F52] and an inquest conducted thereunder is not so much the protection of private rights as it is the furtherance of the public interest. That is, the community has a right to be informed about the circumstances surrounding sudden, suspicious or unexplained deaths.

In that context it is important to understand that an inquest under the Act is not an adversarial trial; neither is it an examination for discovery. It is an inquisition into the circumstances of a death. There are no "parties", there is no cause of action or charge to be answered. The presiding judge does not try, does not commit and renders no judgment of either a criminal or civil nature. His findings and recommendations are not and never can be determinative of anyone's rights.

See also, Swan v. Harris HYPERLINK "http://www.lexisnexis.com:80/ca/legal/search/runRemoteLink.do?langcountry=CA&linkInfo=F%23CA%23MANR2%23deci s i ondate%251992%25sel2%2579%25year% 2 5 1 9 9 2 % 2 5 p a g e % 2 5 1 8 8 % 2 5 s e l 1 % 2 5 1 9 9 2 % 2 5 v o l%2579%25&risb=21_T16729241665&bct=A&service=citation&A=0.29368177619678804" \t "_parent" (1992), 79 Man.R. (2d) 188 (Q.B.).

It is instructive to note that accompanying the clearly prescribed and potentially

expansive duties of a Provincial Court judge, is an equally clear prohibition

against opinions or findings of culpability, as found in ss. 14(2), 21 and 33(2):Opinions on culpability HYPERLINK "http://web2.gov.mb.ca/laws/statutes/ccsm/f052f.php" \l "14(2)" 14(2) In an investigation report, a medical examiner shall not express an opinion with respect to culpability in such manner that a person is or could be identified as a culpable party.

. . .

Opinions on culpability HYPERLINK "http://web2.gov.mb.ca/laws/statutes/ccsm/f052f.php" \l "21" 21 In directing a provincial judge to hold an inquest, the chief medical examiner shall not, with respect to the death or deaths for which the inquest is to be held, express an opinion with respect to culpability in such manner that a person is or could be identified as a culpable party.

. . .

In camera evidence and culpability HYPERLINK "http://web2.gov.mb.ca/laws/statutes/ccsm/f052f.php" \l "33(2)" 33(2) In a report made under subsection (1), a provincial judge

. . .

(b) shall not express an opinion on, or make a determination with respect to, culpability in such manner that a person is or could be reasonably identified as a culpable party in respect of the death that is the subject of the inquest.

Even with the above prohibitions, Freedman J.A., in his judgment in Hudson

Bay Mining and Smelting Co. v. Cummings, 2004 MBCA 182, 190 Man.R.

(2d) 731, M.J. No. 425 (QL) (hereinafter “Hudson Bay Mining 2004”),

acknowledged at paras. 30 and 32 the inherently broad mandate of a Provincial

Court judge conducting an inquest pursuant to the Act:30 To facilitate the achievement of those objectives, which in some ways are more far-reaching than the usual judicial decisions made by a provincial judge, the inquest judge is expressly given certain powers under the FIA. By way of example, he or she may grant standing to interested persons, may limit examination or cross-examination, and may issue subpoenas requiring the attendance of a witness (which in my opinion would include subpoenas duces tecum that require the attendance of a witness with relevant documents). (See ss. 28(1), 28(2) and 30(1)).

. . .

32 The inquest judge is mandated to investigate the cause of death and to make a report which may recommend changes in programs, policies and practices. He or she may recommend changes in the law. The judge's mandate is broad indeed.

Despite acknowledging the objectives and the particularly broad mandate

afforded to inquest judges under the Act, Freedman J.A. nonetheless

recognized the fundamental differences that exist as between an inquest and a

public inquiry. In Manitoba Government and General Employees’ Union

v. Manitoba (Commission of Inquiry into the Death of Phoenix Sinclair

– Hughes Commission), 2012 MBCA 16, 275 Man.R. (2d) 256, M.J. No. 76,

Freedman J.A. stated the following:85 I am satisfied that there are fundamental differences between an inquest that might be conducted pursuant to the FIA and the Inquiry created by the OIC. The most significant difference is in what must be answered, which in the case of an inquest is narrow, as it is dictated by the provisions of the FIA, whereas in the case of the Inquiry it is broad, as it is dictated by the policy decision of the LGIC as expressed in the uniquely created provisions of the OIC.

Notwithstanding what are the comparatively more narrow questions that have

to be answered in the context of inquests, those more narrow and specific

questions may nonetheless require (or certainly not preclude) an occasionally

more broad examination by an inquest judge. That may be the case where

such examination is both relevant and necessary for the preparation of the

recommendations that are part of the prescribed duties of the inquest judge as

set out in s. 33 of the Act.

I agree with the Government of Manitoba’s submission that the scope of an

inquest is defined by the legislation and the court itself. In other words, unlike

criminal or civil proceedings, the scope of the Inquest is not defined by

“parties” or even by appointed Crown counsel, or the interested “persons” who

have been granted standing under s. 28 of the Act. Rather, what Freedman

J.A. referred to as the comparatively more narrow question that has to be

answered, is given meaning by what the inquest judge reasonably understands

is necessary for the purpose of doing his or her duty as prescribed by s. 33(1)

(c) and in accordance with the terms of reference contained in the directing

letter of the Chief Medical Examiner. While the scope of the Inquest cannot, as

Awasis rightly states, become a “roving investigation into general public

concerns”, neither should it be reduced to the point where the Inquest Judge’s

duty to make meaningful recommendations is supplanted by what is often and

understandably an “interested person’s” desire to shape and even limit those

recommendations. It is in the context of this potential tension that issues may

arise (as they have in the present case) respecting the degree to which

participating counsel can and should expect an adherence by the court to a

procedure and judicial approach that mirrors or more resembles the procedure

used in an adversarial proceeding.

Given the duties prescribed by statute and the discussion and clarification as

contained in the jurisprudence, it is reasonable to conclude that by definition,

the role of an inquest judge is inquisitorial. As the Government of Manitoba

submits, to prepare the report (with any accompanying recommendations) as

required by s. 33 of the Act, the court must have the procedural tools

necessary to fulfill its mandate, which necessarily includes the ability to examine

witnesses. If the ability of an inquest judge to examine witnesses exists to the

extent that is often suggested, the following question arises: In the context of

the modern inquest – where increasingly large numbers of counsel are granted

standing – what limits, if any, attach to the inquisitorial role of the judge? The

simplest response to that question is to underscore the fact that the

considerable margin of maneuver afforded an inquest judge to examine

witnesses at an inquest is, by necessity, premised upon and limited by the

reasonable expectation that inquest judges need be impartial, judicious and

respectful of the scope (properly understood) of the particular inquest in

question. These three preconditions are in many ways symbiotic. In that

sense, the failure to realize or ensure one precondition (or even the perception

of same) may affect another, the consequence of which, in some cases, may be

applications (successful or not) like the one in the present case.

(b) Need for Judicial Impartiality

It cannot be nor is it contested in this case that an inquest judge undertaking

his or her role as discussed above, must do so with an open and impartial

mind. He or she must be free from any predisposition respecting issues,

individuals or organizations involved in the inquest. The inquest judge’s report

and recommendations must be based on facts as he or she has gathered them,

even if such fact gathering involves, on occasion, a participatory role on the

part of the inquest judge that might in an adversarial proceeding (civil or

criminal) be seen to otherwise distort the balance required for fact finding. As I

discuss later, while an inquest judge’s mandate is not unlimited in scope, the

inquest judge, in considering the surrounding and relevant circumstances, may

very well probe areas and examine witnesses in his or her own way without

necessarily transgressing the lines that separate partiality from impartiality.

While not everything in judicial style or approach can be idiosyncratic or “up

for grabs”, a more interventionist style or approach in the context of an inquest

(in the name of fact gathering and clarifying) is not necessarily irreconcilable

with a fair hearing, nor should it be seen as synonymous with an apprehension

of bias. In Re: Brown et al and Patterson (1974), 6 O.R. (2d) 441 at page

444, the court held that while the coroner was obliged to conduct himself/

herself in an impartial and judicial manner, he/she was not bound by strict rules

of statutory procedure. In other words, he/she is obliged to make a finding

based upon a fair hearing, which can be conducted in his/her own way. The

judge stated:Regardless of the nature of the Coroner's inquest, which is fundamentally a process of inquiry and reporting, rather than the determination of rights and liabilities, when a person applies for standing under s. 33, the Coroner must embark upon an inquiry and make a finding whether or not the applicant has such an interest. In so doing, the Coroner is required to act judicially in the sense of that expression as it denotes a standard of conduct. He must therefore afford the applicant full opportunity to be heard. He is not required to follow the procedure and other requirements in the Statutory Powers Procedure Act, 1971 (Ont.), c. 47, as that Act does not apply to Coroners. He nevertheless must make a finding on the basis of a fair hearing which he may conduct in his own way. In so doing he must follow the principles stated in Board of Education v. Rice et al., [1911] A.C. 179, per Lord Loreburn at p. 182:

In such cases the Board of Education will have to ascertain the law and also to ascertain the facts. I need not add that in doing either they must act in good faith and fairly listen to both sides, for that is a duty lying upon every one who decides anything. But I do not think they are bound to treat such a question as though it were a trial. They have no power to administer an oath and need not examine witnesses. They can obtain information in any way they think best, always giving a fair opportunity to those who are parties in the controversy for correcting or contradicting any relevant statement prejudicial to their view. Provided this is done, there is no appeal from the determination of the Board under s. 7, sub-s. 3, of this Act. The Board have, of course, no jurisdiction to decide abstract questions of law, but only to determine actual concrete differences that may arise, and as they arise, between the managers and the local education authority. The Board is in

the nature of the arbitral tribunal, and a Court of law has no jurisdiction to hear appeals from the determination either upon law or upon fact. But if the Court is satisfied either that the Board have not acted judicially in the way I have described, or have not determined the question which they are required by the Act to determine, then there is a remedy by mandamus and certiorari.

(emphasis added)

A Provincial Court judge is recognized to possess certain implied powers to

control his or her own procedures, subject of course to any express limitations

of statutes to the contrary. See Hudson Bay Mining and Smelting 2004,

supra, paras. 24 and 25. These inherent powers to control his or her own

procedure would include the ability of the court to examine (personally or

otherwise) witnesses. As the Government of Manitoba has submitted, how that

questioning should occur is a matter of procedure that remains with the court.

It states in its submission:41. … In keeping with the legislative framework that mandates the court the task of making findings of fact, the court’s role should not be curtailed in exercising its decision to allow interested persons to participate in the inquest. Similarly, to the extent that inquest counsel is appointed to attend the inquest, the discretion remains with the presiding judge as to the process it will employ to ascertain the facts.

42. Commonly, eliciting facts is achieved through inquest counsel examining witnesses, with the interested persons being afforded an opportunity to cross-examine witnesses. However, it is ultimately the court that must make the findings of fact based upon its mandate, and in that sense, is not guided by the parties in reaching those findings. To that end, the court’s ability to control its own process is fundamental to fulfilling the objectives of the FIA.

Irrespective of the procedure the inquest judge adopts for eliciting and

gathering facts, where the inquest judge chooses to intervene and examine a

witness, while the questions may be pointed, direct and even suggestive, they

must be premised upon a still open mind looking for answers yet unknown.

Assuming an open mind and a willingness to consider all of the evidence as a

whole, seldom will the examination of one witness by an inquest judge give rise

to an apprehension of bias. For it should be remembered that, even where the

inquest judge’s questions appear more pointed, those questions can only be

directed to the gathering of facts for eventual recommendation, not for the

purposes of identifying a culpable party or expressing opinions on culpability.(c) The Need for Judiciousness

Judiciousness in the context of the judicial role assumes, amongst other things,

the above-mentioned absolute impartiality. Judiciousness also implies a level of

courtesy and restraint that plays out in a judge’s willingness to listen carefully

to both witnesses and counsel’s examinations, cross-examinations and final

submissions.

Although a judicious approach assumes unconditional impartiality, whatever the

forum, the particular procedure adopted by an inquest judge pursuant to his or

her more inquisitorial role requires an assessment that cannot automatically

reference the more rigorous and formalistic procedure and approaches to be

found in an adversarial trial. Nonetheless, the level of civility, courtesy and

general decorum in an inquest must add up to a proceeding that is fair.

While a highly interventionist approach by a sitting judge in the context of an

adversarial proceeding, civil or criminal, may not obviously be compatible with

the judiciousness described above, such a highly interventionist approach is not

necessarily and always illustrative of an apprehended bias, even in an

adversarial proceeding regulated by more rigorous and formalistic procedures.

Every case will be fact specific.

In the context of an inquest, a more interventionist approach on the part of an

inquest judge in questioning a witnesses or witnesses may not only be more

tolerable, but permissible and perhaps in some cases, even necessary.

Awasis argues on this application that part of what is offensive about the

Inquest Judge’s conduct is its timing. In that regard, Awasis suggests that in

effectively taking over the examination-in-chief from counsel at various points

in Burnstick’s testimony, he, the Inquest Judge, was exhibiting a lack of

courtesy and restraint such so as to constitute not just an injudiciousness, but a

predisposition that connoted bias. In support of its position, Awasis evokes the

Manitoba Court of Appeal judgment in Metis Child, Family and Community

Services v. A.J.M., 2008 MBCA 30, 225 Man.R. (2d) 261, M.J. No. 76 (QL).

In that case, Steel J.A. stated the following:74 First, with regard to procedure, a judge should wait to ask questions until after cross-examination and re-examination unless he or she requires clarif ication in order to follow the cross-examination appropriately. For example, if expert evidence is adduced in direct which the judge cannot understand, then the judge is unlikely to understand the cross-examination. Otherwise, the judge should wait. It may be the desired clarification will arise from the cross-examination. In most cases, it is bad practice to ask a series of questions of a witness prior to cross-examination being conducted by opposing counsel. It is especially inappropriate because it may effectively undermine the impact of cross-examination by alerting the witness to certain issues.

The comments of Steel J.A. as cited above were made in the context of an

adversarial trial, albeit a child protection proceeding, where greater latitude is

typically given to a judge wishing and needing to examine witnesses. Her

comments have obvious application in adversarial proceedings where rights are

to be determined and fault and culpability are to be attributed. In such cases,

judicial questions should indeed be limited to clarifications and any such

clarification should usually come after counsel have finished their own

examinations.

Steel J.A.’s comments made in Metis Child, Family and Community

Services v. A.J.M., supra, as sensible as they are, will have a more nuanced

and flexible application in the context of inquests. Although it might indeed be

more orderly and respectful to await the conclusion of counsel’s examinations

and cross-examinations before intervening, the inquisitorial role of an inquest

judge, whose priority is the gathering of facts for an eventual report and

accompanying recommendations, cannot be limited to interventions seeking

mere clarifications. While the intervention should ideally be courteous and the

questions asked must not suggest a predisposition or a mind already

determined and closed, the mere fact of a more interventionist approach by an

inquest judge will by itself suggest neither injudiciousness nor impartiality.

(d) The Need to Respect the Scope of the Inquest in Question

A Provincial Court judge conducting an inquest under the Act need remain

mindful of the parameters of what it is that he or she is required to examine.

The inquest judge’s statutory duties and the terms of reference set out in the

directing letter from the Chief Medical Examiner will assist in fixing the scope of

what it is that the inquest judge must explore in order to fulfill his or her

mandate, which includes the provision of recommendations.

As a matter of fairness to the interested parties and out of respect for the

particular objectives and scope of the Inquest in question, insofar as the degree

to which an inquest judge chooses to ask questions, those questions should be,

broadly speaking, connected, relevant and more or less probative of some

aspect of the question that the judge is required to explore for the purposes of

the recommendations he or she must make.

In this case, Dr. Balachandra wrote a letter to Chief Judge Champagne dated

October 25, 2011, triggering the Inquest. For convenience, I set out again the

terms of reference that are to guide the Inquest:

(1) To determine the circumstances relating to Jaylene’s death;

(2) To examine the function and operation of “safe houses” with

regard to (but not limited to) the following factors:

(a) staff/client ratio;

(b) supervision;

(c) criteria used to determine which child/children can be

reunited with their parent/parents (who, most often, are in

the need of services themselves) and when; and

(d) to determine what, if anything, can be done to prevent

similar deaths from occurring in the future.

As part of its position on this application, Awasis contends that it is important

to note that the Chief Medical Examiner specifically references an examination

of the function and operation of “safe houses”. Awasis emphasizes that there is

no reference to Child and Family Services Agencies. Accordingly, Awasis

submits that the scope and purpose of this Inquest is to determine what, if

anything, can be done to prevent similar deaths occurring in “safe houses”. In

other words, Awasis maintains that the scope and purpose of this Inquest is not

to review the standards and quality of care and services provided by Awasis to

the child or the child’s parent or guardian. Awasis argues strongly that that

task has already been completed by the Office of the Children’s Advocate,

utilizing its experience in the area of Child and Family Services, and its report

and recommendations have already been submitted to the Minister, the

Ombudsman and the Chief Medical Examiner as required by s. 8.2.3 of The

Child and Family Services Act, C.C.S.M. c. C80.

Awasis argues that an appearance of unfairness can result from proceeding in a

manner that exceeds the scope of what Awasis says is the mandate for this

Inquest. In that regard, Awasis relies upon Lennox v. Arbor Memorial

Services Inc. (2001), 56 O.R. (3d) 795 (Ont. C.A.), O.J. No. 4725 (QL),

wherein the Ontario Court of Appeal set aside the decision of a trial judge and

ordered a new trial where the court found that the trial judge had unduly

intervened and required production of evidence that was not part of the

pleadings or productions. The court held that the trial judge had “… diverted

the trial away from the issues the parties sought to present and toward what he

conceived to be the central issue.” Awasis has asked this court to note that the

Ontario Court of Appeal found “… that the trial judge's conduct of the trial

created an appearance of unfairness.”

Lennox was decided in the context of an adversarial proceeding. Awasis

concedes that unlike a trial, the parties with standing at an inquest do not

“present” their case to the inquest judge. Nonetheless, Awasis relies upon

Lennox as a reminder to this court that an appearance of unfairness can result

where an inquest judge, through conduct and questioning, “veers the inquest

hearing away from the issues it was directed to consider.” In this case, Awasis

strongly contends that the comments and questioning of the Inquest Judge

demonstrate that the Inquest was being diverted into areas not identified by the

Chief Medical Examiner, and that such diversion suggests on the part of the

Inquest Judge “a theory of culpability” contrary to s. 33(2) of the Act.

I have examined carefully the terms of reference contained in the letter sent by

the Chief Medical Examiner and I have done so with reference to various

provisions of the Act, specifically s. 33(1) which sets out the duties of the

inquest judge. I cannot agree with the manner in which Awasis attempts to

artificially isolate “safe houses” as a sort of border beyond which the Inquest

Judge dare not move for fear of exceeding the scope of his mandate. It is not

hard to imagine in the context of the circumstances of Jaylene Sanderson-

Redhead’s death, how the efficacy and operation of safe houses might have to

be evaluated, mindful of how such safe houses operate and function with or

without the meaningful collaboration of involved Child and Family Services

Agencies. By definition, Awasis’ role as an “interested” agency granted standing

at this Inquest suggests, at least in this case, an apparent and potential

connection. Notwithstanding Awasis’ position respecting what should be the

narrow and specific focus of this Inquest, in my view, given the circumstances

surrounding the death of Jaylene Sanderson-Redhead, any judicial focus that

would attempt to formulate recommendations without the benefit of at least

probing the manner in which such safe houses do or are meant to interact with

Child and Family Services Agencies, would be one that is unduly myopic and

indifferent to the duties of an inquest judge as set out in the Act.

In disagreeing with Awasis’ position respecting the scope of this Inquest, I also

note the plain wording of the direction given by the Chief Medical Examiner in

his letter of October 25, 2011. In reference to the requested examination of

the function and operation of safe houses with reference to certain factors, the

Chief Medical Examiner stipulates in parentheses that such an examination was

not to be limited to those enumerated factors. Moreover, insofar as there were

factors enumerated, one of those factors listed at 2(c) requires the Inquest

Judge to examine the “criteria used to determine which child/children can be

reunited with their parent/parents (who, most often, are in need of services

themselves) and when”. It is not unreasonable to suggest that that reference

point provides, in terms of scope, a margin of maneuver to the Inquest Judge

that would seem to directly contradict the narrow focus suggested by Awasis.

The position taken by Awasis concerning what it says should be the limited

scope of this particular Inquest, minimizes the fact that at its essence, the duty

of a presiding inquest judge is to determine the circumstances of a death and

recommend changes where such changes, in the opinion of the inquest judge,

would serve to reduce the likelihood of deaths in circumstances similar to the

Inquest in question. Those changes may be to the programs, policies or

practices of a government and/or the relevant public agencies or institutions.

The proposed changes may even be to the laws of the province.

Awasis’ role at this Inquest should be properly respected commensurate with

the standing it has formally been granted. However, under s. 28 of the Act,

the rights of interested persons or agencies formally granted standing are

limited to, amongst other things, being allowed to attend the inquest in person

or by counsel, and being allowed to examine and cross-examine witnesses

called. Even the right of examination and cross-examination of witnesses is

subject to the potential limitations or restrictions that may be imposed by the

presiding inquest judge. In short, to the extent that an “interested” person or,

in this case, an “interested” agency like Awasis has a justifiable role at the

inquest, it is in relation to the assistance that such participation is expected to

bring to the inquest judge’s fact-finding function and more indirectly, the

assistance that such participation may provide in the development of

recommendations. As the Government of Manitoba has persuasively advanced

in its submission, there is nothing within the legislation that would permit an

interested person or agency to directly or indirectly alter, amend, or define the

mandate of the court.

On this application, an acceptance of Awasis’ argument suggesting the

artificially narrow parameters and scope that it says govern this Inquest (which

Awasis suggests should inhibit the Inquest Judge’s questioning) would indeed

have the effect of altering, amending and redefining the mandate which flows

from the Chief Medical Examiner’s letter and the duties of the Inquest Judge as

set forth under the Act.

To the extent that I proceed to any determinations on this motion respecting

the allegations of apprehended bias on the part of the Inquest Judge, those

determinations will be informed by my view that the scope of this Inquest is not

and cannot be restricted to the artificially narrow focus suggested by Awasis.

(e) The Test for Recusal

The test for apprehension of bias has been set out in the Supreme Court of

Canada decision in Wewaykum Indian Band v. Canada, 2003 SCC 45,

[2003] 2 S.C.R. 259, S.C.J. No. 50 (QL) at para. 74. The court stated:74 The question, once more, is as follows: What would an informed person, viewing the matter realistically and practically -- and having thought the matter through -- conclude? Would this person think that it is more likely than not that Binnie J., whether consciously or unconsciously, did not decide fairly?

That test has been considered and applied in various Manitoba cases including

R. v. Trunzo, 2012 MBQB 211, 282 Man.R. (2d) 18, M.J. No. 289 (QL); and

Kalo v. Manitoba (Human Rights Commission), 2008 MBQB 92, 226

Man.R. (2d) 139, M.J. No. 115 (QL).

In R. v. Trunzo, supra, McKelvey J. noted that:19 … The matter of bias denotes a state of mind that is in some way predisposed to a particular result, or that is closed with regard to particular issues ….

In Kalo, supra, I noted the following:25 In addressing the applicable test, I note again that the onus of demonstrating bias is a high one, requiring more than surmise and conjecture. Importantly, any apprehension of bias need be a reasonable one, held by a reasonable and right-minded person, applying him or

herself to the question and obtaining in that regard the required information. To achieve that "informed" status, the right-minded person requires not only information respecting the facts of a particular case, but knowledge of the tradition of integrity and impartiality underpinning our judicial system.

. . .

34 There are few challenges for a judge more fundamental than allegations of bias. Such allegations must be addressed seriously. However, when met with a challenge to his or her impartiality, before a reflexive recusal occurs, a presiding judge must be sure that he or she has not opted for an analytical shortcut. Such a shortcut occurs when recusal takes place based on a vague and unfocused reference to a "possible perception" on the part of the public.

35 While a conscientious concern about the perception of the public (and that of the challenging party) is undeniably subsumed in any analysis on a motion for recusal, it does not displace the more precise and rigorous question that has to be posed: "What would an informed person, viewing the matter realistically and practically - and having thought the matter through - conclude?"

36 Applications for recusal can be complex and difficult and are always fact-specific. Nonetheless, decisions to recuse made without adequate attention to all aspects of the applicable test and made in the absence of sufficient evidence to discharge the moving party's burden, risk betraying the presumption of impartiality. Such unjustifiable decisions also risk trivializing the solemnity of the judicial oath. Rather than enhancing the judicial role and legitimatizing particular results, decisions to recuse in those circumstances become inadvertent abdications of duty.

Any court considering an application alleging a reasonable apprehension of bias

must remain mindful of the presumption of impartiality.(f) The Availability of Interlocutory Relief in the Course of an

Inquest

Manitoba courts are reluctant to intervene by way of certiorari or mandamus on

matters respecting the manner or process in which an inquest is conducted,

even after the inquest has been completed. See Head v. Manitoba (1989),

57 Man.R. (2d) 153 (Man. C.A.) and Swan v. Manitoba (1992), 79 Man.R.

(2d) 188 (Man. Q.B.).

Not surprisingly, this reluctance is no less strong as it relates to requests for

interlocutory review and relief. The law in general, pertaining to applications

for review of interlocutory decisions/judgments, provides that such application

should not be entertained absent special or exceptional circumstances. See

Bennet v. Manitoba (Registered Psychiatric Nurses’ Association), 2002

MBCA 116, 116 A.C.W.S. (3d) 964.

In Hudson Bay Mining 2006, supra, Steel J.A., at para. 111, commented in

obiter about the timing of the application:… I wonder whether the decision to suspend hearings pending the appeals over this issue was the wise one. The law tends to frown on appeals with respect to interlocutory matters because they often lead to significant delays. Had an appeal been held after the conclusion of the hearings, as in the normal course of events, the refusal to order disclosure may have been a ground for judicial review.

Notwithstanding the general caution otherwise limiting interlocutory review to

special and exceptional circumstances, matters which directly affect procedural

fairness or natural justice may, in some instances, constitute special and

exceptional circumstances, thereby justifying a review of an inquest judge’s

mid-inquest decision. See, for example, Hudson Bay Mining 2006, supra,

and Steel J.A.’s discussion (in the context of issues of disclosure and

production) at paras. 96 and 97. Even then, however, any such interlocutory

judicial review, meant to ensure a minimal threshold for procedural fairness and

natural justice, will be informed and limited by what I earlier discussed are the

unique duties of an inquest judge and the particular processes and procedures

available to that presiding inquest judge.

As it relates to interlocutory applications to review a judge’s determination to

not recuse, the challenges are high indeed for a moving party. In this

connection, it need be remembered that the governing law in respect of

motions for recusal requires the applications to initially be brought directly

before the presiding and impugned judge. It is for that judge to apply the

governing test and to do so mindful of the presumption of impartiality.

Given that it is well established that applications for recusal must be brought

before the judge in question, and given that he/she is required to apply and

instruct himself/herself in relation to what is a very rigorous test, it would seem

odd indeed to permit parties to be able to reflexively and automatically seek

interlocutory review of what is assumed to be a careful and judicious

determination, particularly where the test has been properly applied. If an

interlocutory review was meant to be so accessible, why the requirement that

the application be first brought to the presiding judge as opposed to a

reviewing court? In fact, the jurisprudence suggests that in most cases,

dissatisfaction with a judge’s refusal to recuse is appropriately left for appeal.

Not only is such a manner of proceeding more congruent with the presumption

of impartiality and the way in which the test for recusal is initially considered

(before the presiding judge in question), it also ensures a more complete record

with an ultimate result which will offer the court, on any eventual review, more

full and meaningful context.

In a case involving an allegation of a reasonable apprehension of bias, the

availability of review and potential relief at the completion of a proceeding is

well established. In Chrétien v. Canada (Ex-Commissioner, Commission

of Inquiry into the Sponsorship Program and Advertising Activities),

2008 FC 802, [2009] 2 F.C.R. 417, on a review taken at the completion of

what was a Commission of Inquiry, the Federal Court (affirmed on appeal)

found that certain out-of-court comments made by the Commissioner at the

time of the Commission gave rise to a reasonable apprehension of bias as it

related to the applicant. As a result, the findings in the Commission’s report in

respect of the applicant were set aside. See the judgment on appeal reported

at Chrétien v. Canada (Commission of Inquiry into the Sponsorship

Program and Advertising Activities, Gomery Commission), 2010 FCA

283, [2010] F.C.J. No. 1274.

It would take a special and exceptional set of circumstances to justify an

interlocutory review and any connected relief in a case involving the presiding

judge’s refusal to recuse. Special and exceptional circumstances may exist

where the alleged conduct is so flagrant that it amounts to a breach of natural

justice. In such an instance, the Federal Court of Canada acknowledged in

Sanofi Pasteur Ltd. v. Canada (Attorney General), 2008 FC 286, 165

A.C.W.S. (3d) 767, F.C.J. No. 352 (QL) that:41 … It would be unfair to refuse to intervene when the underlying decision denies a party the benefit of a fair hearing, discloses grounds for an apprehension of bias, or curtails a party's substantive rights: …

The sort of breach of natural justice as contemplated above would involve loss

of jurisdiction.

In R. v. Moman, 2008 MBQB 311, 234 Man.R. (2d) 149, M.J. No. 412 (QL),

this court addressed an interlocutory application for an order in the nature of

certiorari, which order would have quashed the presiding judge’s decision to

not recuse. Although that case arose in the context of the time-honoured

limitation in criminal cases preventing interlocutory appeals, the discussion in

that case has relevance to the issues to be determined on this application. The

court noted the following at paras. 30-32:30 Moman cites authorities to support the proposition that once a reasonable apprehension of bias has been demonstrated, a trial judge has no jurisdiction to continue the proceedings. See Felderhof, supra; R. v. Adam, HYPERLINK "http://www.lexisnexis.com:80/ca/legal/search/runRemoteLink.do?langcountry=CA&l inkInfo=F%23CA%23BCSC% 2 3 o n u m % 2 5 1 5 4 0 % 2 5 d e c i s i o n d a t e % 2 5 2 0 0 6 % 2 5 ye a r%252006%25sel1%252006%25&risb=21_T16738068176&bct=A&service=citation&A=0.6917300557717857" \t "_parent" 2006 BCSC 1540, HYPERLINK "ht t p: //www.l exi snexi s .com:80/ca /l ega l /sea rch/runRemoteLink.do?langcountry=CA&linkInfo=F%23CA%23BCJ%23year% 2 5 2 0 0 6 % 2 5 s e l 1 % 2 5 2 0 0 6 % 2 5 r e f%252719%25&risb=21_T16738068176&bct=A&service=citation&A=0.5100015853810392" \t "_parent" [2006] B.C.J. No. 2719 at para. 30 (S.C.) (QL); R. v. Curragh Inc., HYPERLINK "http://www.lexisnexis.com:80/ca/legal/search/runRemoteLink.do?langcountry=CA&linkInfo=F%23CA% 2 3 S C R % 2 3 s e l 2 % 2 5 1 % 2 5 y e a r % 2 5 1 9 9 7 % 2 5 p a g e% 2 5 5 3 7 % 2 5 s e l 1 % 2 5 1 9 9 7 % 2 5 v o l%251%25&risb=21_T16738068176&bct=A&service=citation&A=0.7465393713239635" \t "_parent" [1997] 1 S.C.R. 537; R. v. DiGiuseppe, HYPERLINK "ht t p: //www.l exi snexi s .com:80/ca /l ega l /sea rch/runRemoteLink.do?langcountry=CA&linkInfo=F%23CA%23OJ%23year% 2 5 2 0 0 4 % 2 5 s e l 1 % 2 5 2 0 0 4 % 2 5 r e f%253674%25&risb=21_T16738068176&bct=A&service=citation&A=0.035723201594733744" \t "_parent" [2004] O.J. No. 3674 (Sup. Ct. J.) (QL).

31 While the above proposition may be correct, it will be rare that the reasonable apprehension of bias will be so clear that it constitutes a flagrant breach of natural justice such so as to justify interference with the decision at first instance (on the basis of an alleged jurisdictional error). The following court's comments in DiGiuseppe, supra are

instructive:

[95] At para. 17 in R. v. Felderhof, A. Campbell J. discussed the very high standard of review because courts should interfere with an ongoing trial only in the most extraordinary cases:

"... mid-trial intervention can only be justified where the error is jurisdictional. Jurisdictional error is error so patently unreasonable, so palpable and overriding, that it destroys the underlying fairness and legality of the case and cannot be corrected on appeal".

[96] As I have indicated in my reasons, no reasonable apprehension of bias has been established by the applicant. No reasonable apprehension of bias amounting to a jurisdictional error has been established by the applicant. Therefore, I find the application by the applicant for an order of prohibition to remove the trial judge and to quash his decision of May 14, 2004 is not the appropriate remedy in this case. Rather, the applicant's remedy is an appeal of the decisions objected to after the trial is over.

[Emphasis added]

32 Although it is perilous to speculate about those situations which might represent examples of a reasonable apprehension of bias sufficient to constitute a breach of natural justice (and thus, jurisdictional error), some examples are more obvious than others. A judge who, before or during a trial, expresses his or her disinclination to believe the accused even before the accused has taken the stand, would appear to give rise to a reasonable apprehension of bias that engages basic principles of fairness and natural justice. In such a circumstance, a remedy should be available.

Where interlocutory review and relief is sought in relation to a judge’s mid-

proceeding decision respecting allegations of reasonable apprehension of bias,

the applicant’s case must be so clear and the judge’s conduct so flagrant that it

cannot but amount to a breach of natural justice. That high threshold was

endorsed in Sanofi Pasteur Ltd., supra, at para. 49:49 In the case at bar, having weighed factors such as hardship to the applicant, waste of judicial resources, delay and fragmentation, I am in agreement with Justice Evans' conclusion in Air Canada: "A non-frivolous allegation of bias that falls short of a cast-iron case does not per se constitute "exceptional circumstances", even when the hearing before the

tribunal is still some way from completion, and there is no broad right of appeal from the tribunal. Nor is it to be equated with a constitutional attack on the "very existence of a tribunal" considered in Pfeiffer v. Canada (Superintendent of Bankruptcy), above." Accordingly, this application for judicial review must be dismissed.

(emphasis added)

It should go without saying that to justify interlocutory review and relief in

relation to a presiding judge’s refusal to recuse, whether it be an adversarial

proceeding or a proceeding such as an inquest, there must be a sufficiently

complete record so as to provide both examples and context for what need be

a flagrant instance or flagrant pattern of conduct demonstrative of an

apprehended bias. Such conduct must manifestly represent a “cast iron case”

substantiating a breach of natural justice. In such special and exceptional

circumstances, the systematic or flagrant nature of the breach will go to

jurisdiction and thereby open up the possibility of interlocutory review. Such

mid-trial or mid-proceeding interventions can only be justified where the error is

jurisdictional. As earlier noted in R. v. Felderhof, [2002] O.T.C. 829 (Ont.

S.C.J.), O.J. No. 4103 (QL) at para. 17:… Jurisdictional error is error so patently unreasonable, so palpable and overriding, that it destroys the underlying fairness and legality of the case and cannot be corrected on appeal.

IV. ANALYSIS

In the context of an ongoing Inquest held pursuant to the Act, is the interlocutory review Awasis seeks available and appropriate in the particular circumstances of this case?

The interlocutory review and relief that Awasis seeks on this application is for

the purposes of quashing and/or setting aside the presiding judge’s decision

wherein he dismissed Awasis’ motion to recuse.

As I earlier mentioned, Awasis impugns the nature and number of the Inquest

Judge’s comments and questions during the testimony of the witness Burnstick.

Awasis contends that the selected and adduced portions of transcript of

Burnstick’s testimony reveal:

excessive and extensive intervention and interruption of counsel during direct

and cross-examination of Burnstick;

aggressive judicial cross-examination of Burnstick;

a de facto assumption by the Inquest Judge of the role of Crown counsel and

counsel for the Native Women’s Transition Centre;

an apparent unfavourable predisposition that Awasis acted wrongfully and/or

negligently.

In making its submission, Awasis points to 27 various portions of the transcript

from Burnstick’s testimony which Awasis says are illustrative and supportive of

its claims respecting a reasonable apprehension of bias.

Following submissions from counsel, the Inquest Judge rendered his judgment

with some 41 pages of reasons. In his reasons, the Inquest Judge properly

applied the correct test and directed himself to the governing jurisprudence.

He did so, giving appropriate and significant consideration to the role and

responsibility of a judge presiding over an inquest as compared to a judge

presiding over a civil or criminal case. At page 34 of his reasons, he noted:Because of the different mandate and because of the inquisitorial nature of the proceeding, most if not all judges presiding on an inquest must

become more involved in determining evidence.

Additionally, judges presiding over inquests will have been provided in advance of the hearing with extensive material, (in this case approximately 10 thick binders of material) which will have resulted in the presiding judge having a great deal of background information already at hand as a guide to assessing at least some of the possible areas that may need further clarification or examination.

In may, because of the non-adversarial nature of inquests, be necessary to look at bias somewhat differently than if the matter was a trial. Bias implies partiality to one side or the other. In an inquest there are no sides. This of course does not mean that an inquest cannot impact reputations and cause difficulties for participants. Fairness is still obviously a paramount consideration, but bias in a non-adversarial matter, is in my opinion, arguably one thing at a trial and something else at an inquest.

Again, at page 36, the Inquest Judge stated:I cannot imagine many judges would be prepared to take on the responsibility of an inquest if their right to get to evidence they felt to be important was curtailed. Of course always keeping in mind the important requirement of fairness.

It is of some interest that in the common law inquest, from which our system has evolved, it is primarily the corner [sic] who examines the witnesses and “at the common law inquest it is a matter entirely within the coroner’s discretion whether or not anyone else will be allowed to question a witness”. (p. 137, T. David Marshall “Canadian Law of

Inquests” 3rd, Carswell).

Finally, on page 38, the Inquest Judge stated:An inquest is a significant hearing. It is not meant to be conducted without some degree of vigour. It seems to me that the reasonable onlooker would expect that witnesses will sometimes be questioned by the judge, perhaps sometimes vigorously and that would be particularly the case if they are being evasive.

. . .

The interventions in this case have to be looked at within the context of the nature of the inquisitorial process, a judge’s right to necessary evidence and the overall tenure of the communication between the judge

and the witness. …

As I noted earlier, the evidentiary foundation provided by Awasis rests entirely

on the Inquest Judge’s conduct in respect of Burnstick, a witness who has been

described as somewhat evasive and difficult. Even that evidentiary foundation

is made up only of selected and identified parts of Burnstick’s testimony. No

other transcripts have been adduced relating to the many other days of

testimony and the various other witnesses. Accordingly, it is fair to suggest

that the testimony of Burnstick has been isolated and has been addressed on

this application without wider context and without a more complete record.

While it might be possible in extraordinary cases to identify, with only one

witness’ testimony, conduct on the part of a judge that amounts to a breach of

natural justice sufficient so as to justify interlocutory review and relief, such is

not the case on this motion.

To be able to access the interlocutory review and relief that Awasis seeks at this

mid-point in the Inquest, Awasis must demonstrate that the impugned

comments and questions on the part of the Inquest Judge constitute conduct

so flagrant that it amounts to a breach of natural justice. Awasis has failed to

do that on the evidence it has adduced in respect of the one witness alone.

This is not one of those rare and clear cases where the impugned conduct can

or should justify the review, on an interlocutory basis, of a presiding judge’s

discretionary determination to not recuse. Neither is this a case where it would

be unfair to oblige the participants to continue the Inquest to completion

before raising any similar complaints on appeal. In other words, this is not a

case where the impugned conduct at this point in the proceedings can be

obviously seen to have destroyed the underlying fairness, legality and

legitimacy of the Inquest, such that any impugned f indings or

recommendations could not be addressed on appeal.

I have come to my determination on this first question, after having read and

re-read the transcript provided and after having informed my analysis with the

earlier-discussed reference points which I included under the heading “Legal

Framework”. Those reference points included extensive examination of the

nature of inquests and the role, duties and powers of an inquest judge.

Even if I am wrong in respect of my determination on this question, and

assuming that the claims of apprehended bias as alleged by Awasis were such

so as to require interlocutory review, Awasis’ application would, in my view, still

fail on the merits. In other words, the frequency of the Inquest Judge’s

interventions and the number, manner and context of his questions respecting

the witness Burnstick, are not inconsistent with nor inappropriate to his role as

an inquest judge carrying out his particular mandate in the circumstances of

this case.

While the timing and extent of the Inquest Judge’s interventions may have on

occasion moved significantly away from the ideal of judiciousness, those

interventions were not irrelevant nor were they examples of inappropriate roving

(outside the reasonably understood scope of the issues of this particular

Inquest). Despite their sometimes pointed and direct tone, neither were the

interventions of a nature so as to give rise to a reasonable apprehension of bias.

Although many of the Inquest Judge’s questions represent a line of inquiry

which directly or indirectly asked for some degree of explanatory accountability

from an employee of Awasis, that legitimate line of inquiry should not, in

proper and full context, be mistaken for a predisposition towards “a theory of

culpability”.

In my view, an informed person (apprised of the role of an inquest judge)

seeing the matter realistically and practically (mindful of the difficult nature of

Burnstick as a witness) – having thought the matter through – would think that

it is more than likely that the Inquest Judge has and would continue to gather

facts and make recommendations fairly.

Part of the above assessment would take into account the fact that most of the

Inquest Judge’s interventions were in the nature of attempts to have Burnstick

more clearly elaborate and better explain her evidence, in light of the Inquest

Judge’s concerns about its incongruities and the witness’ evasiveness.

As part of any practical and realistic assessment from the perspective of an

informed person, it would be necessary to take into account the fact that no

objection was made by any counsel at the time of the Inquest Judge’s

interventions in question. Also part of the assessment of an informed

perspective, would be a consideration of the fact that the Inquest Judge’s

interventions did not inhibit other counsel from conducting the cross-

examination that they wished to conduct of Burnstick.

Finally, as part of any informed assessment respecting whether an inquest

judge’s conduct is suggestive of a reasonable apprehension of bias, the

assessment would involve an understanding that an inquest judge does not

hear and determine issues raised by the parties, but rather, the judge’s duties

require him or her, mindful of the scope of the particular inquest, to conduct

an investigation and examination on behalf of the public at large. It is from

that perspective that an inquest judge’s recommendations are made, free of

findings or opinions respecting culpability. It is for that reason that the degree

of intervention tolerated in the conduct of an inquest judge (whose role is, by

definition, inquisitorial) is much greater than that tolerated in relation to a trial

judge presiding in an adversarial proceeding where his or her role is not fact

gathering, but fact finding, and where that role may lead to a pronouncement

of guilt or liability.

For the foregoing reasons, Awasis’ application is dismissed. Given that the issue

of costs is contested, I would anticipate counsel’s prompt effort to return for

argument and decision.

_________________________________ C.J.Q.B.

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